New Hanover child porn case in jeopardy after cellphone ruling

A June 25 opinion by the U.S. Supreme Court declared cellphones constitutionally protected items searchable only by warrants.

By F.T. NortonFran.Norton@StarNewsOnline.com

An anonymous package delivered to the New Hanover County Sheriff's Office in December contained a cellphone and a note."Found this phone with very disturbing pictures on it including child pornography," the unsigned paper wrapped around the phone read.Two sheriff's office investigators viewed the phone's contents. Among items found were videos of a man engaging in sex with a dog and photos depicting young girls being molested, court documents reveal. After contacting T-Mobile to identify the owner, police secured a search warrant for the Chestnut Street home of 33-year-old Derek Scott Price. Price was arrested on 18 counts of sexual exploitation of a minor and one count of crimes against nature. While Price remains in jail in lieu of $350,000 bail and is awaiting his day in court, a recent U.S. Supreme Court opinion puts the government's case – and an unknown number of other cases that have cellphone searches at their core – in jeopardy. "But for the unlawful search, the officers would not have had probable cause to search Price's home nor would officers had a probable cause to arrest Price," Price's court-appointed public defender Jason Minnicozzi wrote in a July 14 motion to suppress the evidence. "Thus, under the fruit of the poisonous tree doctrine, all evidence against Price is the tainted fruit of an unlawful search." Minnicozzi's motion is based on the June 25 opinion by the U.S. Supreme Court that declared cellphones constitutionally protected items searchable only by warrants. Unlike new laws that come into play and have little bearing on existing cases, interpretation of the U.S. Constitution is always retroactive, said capital defender Rick Miller of Wilmington. "Constitutional stuff applies to the whole nine yards," Miller said. "The bottom line is, we've got to protect some personal rights. It's so easy to get into electronic equipment today that unless we're really careful, we're not going to really have a meaningful constitution anymore."The unanimous ruling was the result of two unrelated cases in which cellphone evidence was used to convict two men. The opinion states that although searches incident to arrest generally are justified to ensure that the arrestee doesn't have a weapon and to prevent the person being arrested from destroying evidence, the searching of a cellphone doesn't prevent either. "Law enforcement officers remain free to examine the physical aspects of a phone to ensure that it will not be used as a weapon – say, to determine whether there is a razor blade hidden between the phone and its case. Once an officer has secured a phone and eliminated any potential physical threats, however, data on the phone can endanger no one," the Supreme Court opinion states. Under the Constitution's Fourth Amendment, before conducting a search police need a warrant based on "probable cause" presented to a judge. A Supreme Court ruling in 1983 found that an anonymous tip – as in the Price case – was not enough probable cause to obtain a search warrant. The New Hanover County District attorney's office declined to speak about the pending case against Price. As of Thursday the state hadn't yet filed a response to the defense motion. A hearing in the Price case is set for Oct. 6. New Hanover County Sheriff's Office spokesman Sgt. Jerry Brewer said he also couldn't comment because it is an open investigation. Linda Rawley, spokeswoman for the Wilmington Police Department, said it is WPD policy to always secure a warrant for a cellphone search. But for the department's evidence locker, that poses a bit of a problem. If a phone is surrendered to police as a found object or is part of the seizure of stolen items, it stays in evidence for 180 days before it can be disposed of, said evidence technician Phylisha DellaPia. After six-month hold ordered by state law, technicians will search the phone to determine its owner, she said. But what if, during an attempt to find the owner, the technician comes across proof of a crime?"If they are conducting a legitimate inventory search and they do run across contraband or evidence of a crime, that is evidence that is legitimately acquired," said Wilmington defense attorney James Payne. "But at the point of finding evidence of a crime, they should say 'Time out' and get a search warrant."Miller said it's too late now for police to get a warrant in the Price case. "Would the judge have found probable cause for the warrant because of a tip from some anonymous person? Probably not. You can't do it after the fact. They would have needed the search warrant at the time they seized the phone. Now they've already gone in it and that doesn't work," Miller said. "The evidence is fruit of the poisonous tree."